Wednesday, 22 September 2010

Of course the institution did not assume all the functions of the author in the production of individual texts, such a claim would be silly. The analogy is imperfect, to be sure: its value is that it reflects the marginalisation of the community of scholars. The wrongness of institutional claims over intellectual property was not in its contrast to the rights of the individual author or originator, but in its failure to acknowledge collectivity. In fact, the appropriation of rights by the university paralleled, even enhanced, the individuality and authority of authorship. In claiming the singularity of the institution as the rightful owner of knowledge and intellectual property, it confined the plurality, the organic richness of the community of scholars to its narrow and increasingly impoverished being.

The university did own knowledge. The community of scholars were the university and their knowledge, collectively, enriched the places where they gathered. The community of scholars was like a living, breathing library, wealthy (as the cliché describes it) with knowledge. This explains why the universities had thought it would be so easy to claim intellectual property from staff and students: the knowledge they had was the university’s all along. But in the community-based gift economy that knowledge, while tradeable as a gift, could not be converted to currency.

Currency was the wealth universities were definite that they needed. Collectively they had constructed what Elizabeth Garnsey called a “consensual vision”, a fantasy in which teaching and research, reconstructed as a trade in intellectual property, would solve their pressing financial problems.Government policy not only supported their belief it also structured a system that required their compliance in it. Government had been advised that there was a global $600 Billion market for knowledge. Knowledge was what universities did, the substance that they ‘traded’ in. While acknowledging that universities, by their nature, did a lot of ‘pure’ research, approximately half of it was useful – strategic and applied – and therefore, they thought, could surely be added to this vast global knowledge market for a profit. If universities could be encouraged to be more entrepreneurial and to consider their knowledge to be a type of intellectual property, logic deemed that universities could be potentially funded from the knowledge they produced. This would help the government by relieving the public of some of its responsibility for funding higher education.

It would also help the universities, so their leaders were persuaded, since they were grossly underfunded. Moreover, since the early 1980s they had been looking for more diverse sources of income in an attempt to regain autonomy from the ever-encroaching Commonwealth. Indeed, the Commonwealth had been moving, inch by barely observable inch, to undermine academic freedom in the universities. But the transfer of knowledge towards short-term, achievable national and market priorities was still not as severe an attack on academic freedom as that which the universities unwittingly launched themselves. In the obligation to report and protect commercial potential, universities posed a direct threat to the right to publish and the priorities of research. The new structure of ownership – appropriation of intellectual property rather than ownership of knowledge by virtue of membership – structured the possibility for institutions to suppress research.

As it turned out, the potential for wealth had been overstated. A $600 Billion intellectual property market was not suddenly likely to be dominated by the types of (even strategic and applied) research outcomes that universities were good at. The idea that anything close to 50% of university research outcomes had commercial potential shows a clear misunderstanding of the market for knowledge – commercialisation specialists now suggest that only a tiny percentage (0.03%) of the new ideas generated within a university will ever successfully find their way to market.

In this chapter I have not made any moral claim for where income derived from university intellectual property should go. I not only consider that to not be my job, but I am also genuinely agnostic about the problem. That it is a problem – as result, actually, of the changes in policy between 1986 and 1996 – I have no doubt. But there is nothing satisfactory in saying that, in the interests of academic freedom all intellectual property rights should be given to individual academics. On the other hand, that ownership by institutions did nothing good for university knowledge is clear. It is the emptiness, the poverty of the singularity of the ownership of knowledge that is the problem, whether institution or individual author. The collective knowledge of scholars could not be converted to currency, but it was what had made them rich. Rather than provide the universities with a new and reliable income stream, intellectual property robbed the universities of their wealth.

[as always, blurb about footnotes here, email me if you want them blah blah blah. Also a note: I still have a couple of days before this chapter will be properly finished and this conclusion is likely to change. Any suggestions, now is the time!]

Tuesday, 21 September 2010

Intellectual property could not accommodate the structure of the community of scholars: and yet it also relied on the collectivity of university knowledge to justify institutional claims. In 1993 the Australian Vice-Chancellors Committee released advice to universities, a how-to guide for claiming staff and student intellectual property. Research was almost never a purely individual act, they suggested. Even when research had been individually constituted, academic association with the university demonstrated their reliance on the institution to be able to conduct research. The infrastructure: “rooms, electricity, gas, water, telephones”, were just the beginning. Science relied on expensive laboratories, the humanities on expensive libraries. The scholarly environment, claimed Macquarie University, though intangible and unquantifiable, acted as the inspiration and enabler of quality research, validating their claim to income derived from it. Furthermore, in much contemporary research, it was simply “not possible to identify one person as the author, inventor, creator, maker or originator”, asserted th Australian Vice Chancellors’ Committee. As George Eliot had said in Middlemarch:

There was no need to praise anybody for writing a book, since it was always done by somebody else.

Unlike Eliot, the Australian Vice-Chancellors’ Committee did not think it was funny. They were concerned that its complexities carried the potential for exploitation. Students and research assistants, they said, might “have difficulty in claiming any rights if a person of comparative power is permitted to claim sole ownership or to assume control”.

They had a point. Critical legal studies have long noted connections between power, constructions of the individuality of authorship and legal claims to financial proceeds. Many of the legal approaches are influenced by Foucault, who identified authorship as an eighteenth century instrument of surveillance: the ability to locate an individual to blame for a transgressive text. Mark Rose traces the construction of the individual author as a part of a long political struggle to establish the autonomous political subject in a parliamentary system. It was also a claim to power: the result of a long financial struggle between authors and booksellers. The “valorization of original genius”, he demonstrates, coincided with both a mass market for books and the possessive individualism articulated by John Locke. However, Pamela Long argues for a longer history, not only suggesting antecedents to intellectual property in antiquity but also claiming that individual authorship and its connection to intellectual property is evident in the fifteenth century. She specifies that the concept of authorship extends to making, designing and inventing material things: but by modernity, each is considered the work of an individual, rather than the product of collaboration.

All this was collapsing by the end of the twentieth century. The heroic ideal of the hermit-like humanities scholar scribbling in her sandstone garret had been largely superseded by collaborative teams of scientists agonising over findings in laboratories. In 1967 Roland Barthes had disputed the Romantic pre-eminence of authorship in the construction of knowledge:

The Author, when believed in, is always conceived of as the past of his own book: book and author stand automatically on a single line divided into a before and an after. The Author is thought to nourish the book, which is to say that he exists before it, thinks, suffers, lives for it, is in the same relation of antecedence to his work as a father is to his child.

The ascendancy of science, especially since the Second World War, changed the dominant research culture in universities so that discovery towards the end of the century was rarely a truly individual endeavour. Changes in pedagogies and epistemologies that had their roots in 1960s and 1970s student protest movements also transformed dominant scholarly practices. Knowledge acquisition became knowledge construction. Individual achievement became collaborative problem solving. The individual mind was transformed into a participant in a network. Indeed, knowledge was inseparable, some educational theorists claimed, from its environment. If originators were to own intellectual property themselves, exactly who that meant was becoming very difficult to identify.

This is how the transformation of the research environment internationally impacted university intellectual property policies. In a Mode 2 environment it was not (at least not initially) complications out of questions of ownership, but rather questions about the individuality of knowledge production. Knowledge was collaborative: indeed the existence of the community of scholars affirmed it. Just as the community – and thus the university – could not exist without academic members, nor could the scholar be truly scholarly without the community.

The new policy framework, however, indicates a subtle, unspoken restructure. The community of scholars, as the last chapter showed, was on the verge of collapse as the gift economy was supplanted by an exchange-based system. But Romantic constructions of individual genius were also disintegrating: the author, inventor and scholar were increasingly difficult to locate. The Australian Vice-Chancellors’ Committee claimed that this complexity bolstered the universities’ claims over the ownership of intellectual property. Institutional ownership placed the control of property in the hands of a single entity, cleaning up the mess of trying to locate originality. The Vice-Chancellors suggested that institutional ownership of intellectual property meant it would be managed in “the best interests of all concerned”. The university’s role was now paternal: it was the antecedent, the father. Rather than embodying the community of scholars, the institution assumed the role of the author.

[footnotes have been removed for the purposes of this posting. they are available on request]

Sunday, 19 September 2010

Suppression of research findings was an early fear as the values attached to research commercialisation and intellectual property entered the universities. The Higher Education Supplement reported that sometimes commercialising research prevented it from getting to the parts of society who most needed it. The fear that those with the money would control the way knowledge was used had for centuries fed academic freedom. University knowledge was protected from systematic skewing to the sole benefit of patrons and their financial interests by closely guarding the right to publish and present research findings. Some intellectual property policies changed this whole apparatus. Five out of the eight policies required staff to both inform the university of a potentially commercialisable discovery and protect its commercialisability. For example:

The staff member shall notify his/her Head of Department and the General Manager of ITC (Uniadvice) Ltd that intellectual property has been created. Where intellectual property has been created all reasonable care must be exercised by staff and students not to disclose, publish or use the property in any way which would prejudice its protection.

This says a researcher is not allowed to discuss their research without approval by the university. The decision, moreover, regarding commercialisation and publication would belong to the institution. In fairness, most universities have changed this now and academics own the decision (if not the property). Commercialisable intellectual property in its narrow sense turned out to be a very small proportion of any university’s research output, so no real financial hardship was attached to maintaining academic freedom, in the end. But in the 1980s and 1990s, universities had reason (some of these reasons will be discussed a little later in this chapter) to expect that research might be converted into a vast and lucrative body of products. And when they held that belief, the desire to own knowledge was ardent.

While it permeated negotiations on all sides, more than greed underpinned these policies. Collectively they demonstrate just how deeply the universities assumed that, in a sense similar to the books in its library, any knowledge existing within their metaphoric cloisters belonged to the university. Half of the sample policies claimed all intellectual property produced by students, the remainder offering students the option to assign their intellectual property if needed (for example, if the student wished the university to assist in commercialisation). Macquarie University, despite documented advice that it may infringe students’ legal rights, claimed student intellectual property as a condition of enrolment. Believing that all intellectual endeavour that went on in the university somehow “belonged” to it, this claim was derived from nothing more than their position of power (remembering institutions can not just claim property as their own, irrespective of their right to enrol or not enrol a student). Students were certainly not employed to produce intellectual property for the university. I understand that universities have also stopped doing this. It is nevertheless significant that they tried. The Australian Vice-Chancellors Committee thought it was a very good idea: in 1993 they suggested all universities use their power over enrolment to acquire students’ intellectual property.

The Australian National University 1986 intellectual property policy contained a very odd clause:

The whole of the professional time of an academic staff member is required to be devoted to the performance of the duties of office of that staff member. Thus, any intellectual property developed by staff members in the performance of the duties of their office belongs to the university.

Academic staff were thus expected to have no intellectual or inventive life beyond their academic duties. This clause would suggest the university could claim ownership over patent rights to an invention made in the course of an academic’s hobby, even if unrelated to their academic field, since all professional time (which income, the policy implies, indicates) belonged to the university. General staff were different:

In contrast to academic staff members, general staff members have fixed times of working: however, any intellectual property developed by them in the course of their employment, or using resources and facilities provided by the University, also belongs to the University.

Academic work tended to resemble the task-oriented peasant work that EP Thompson described back in 1967: the task, rather than the length of the workday, was important. For better and for worse, in academia less distinction existed between “work” and “life” than the Australian National University’s legal team would have liked. Academic work as they well knew, was not only difficult to define it by its tasks, it would also be insufficient for their purposes to define it by the length of the workday. Academic time, especially research time, was spent doing their “own” work, pursuing knowledge in the way they saw fit, finding truths along untrodden and therefore unpredictable pathways. How could an employer define it in order to claim it? The Australian Vice-Chancellors saw the problem immediately:

It is not always clear whether the activity which produces the property is one which comes within the terms of the contract of employment. It is difficult to determine whether the property is produced in the institutional employer’s time or in the staff member’s time.

This explains why the Australian National University was so careful to claim everything an academic staff member ever did. “Time was now currency”, to use EP Thompson’s phrase, and whatever its exchange rate the universities, as if they were the same as any other employer, wanted it.

But the universities were not just any other employer. Industrial capitalism had claimed time as money as Max Weber, EP Thompson and so many others have shown. But not in the universities. This had to do with both work and knowledge. Firstly, academics were not employees in the same sense as others because their role required them to be free from many of the constraints of employment. For an academic to do their job they could not be told exactly what knowledge to pursue or exactly how to teach it. And yet this exactitude was what claiming intellectual property as an employer required. Secondly, knowledge-based (rather than market-based) research led to knowledge that had distinct qualities. University knowledge was inseparable from the knower (inalienable in a way that goes beyond epistemic belonging): what the person knew and discovered and their membership in the community of scholars was inseparable from the university itself. Institutions could not easily make the claims other employers could then, for protecting intellectual property contradicted their mission to protect academic freedom. So what universities tended to do was to claim that they were the same: that the pursuit of knowledge and the protection of intellectual property held only a semantic distinction.

[The following section, in my thesis as it is currently drafted, follows some detailed and not really bloggable analysis of university IP policies]

The primary concern for universities, contrary to Monotti’s and Ricketson’s claims, was not to clarify the question of who owns intellectual property in a collaborative research environment. Of the eight policies sampled, only three mentioned external partners: both Monash and Macquarie Universities specified that they would claim 100% of intellectual property from externally funded research and Adelaide said they would negotiate each case. Even in those three documents, concern over the ownership of intellectual property by collaborators or funding bodies were never central to the policy’s goals. This suggests that, despite growing interactions with industry and the commercial world, universities were not initially concerned about them. The key concern for universities in the 1980s and 1990s was to ensure the institution, rather than its staff, were the rightful owners of intellectual property.

What is this about? What were universities trying to establish with their staff? A close examination of the wording and the reasoning reveals ambivalence and uncertainty in the ways universities attempted to protect the knowledge that they were just starting to suspect contained a valuable commodity. The wording of universities’ claim was quite variable, highlighting some uncertainties about the nature of academic work. Some universities claimed ownership of intellectual property that “arose” (as if by accident) from an academic’s work. Some claimed work that was “produced” by “originators”, using language of agency and intent. In every case, universities used their status of employers to claim the products of the labour of their employees. While this sounds straightforward enough, even a cursory investigation of the character of academic work reveals it was not.

Ann Monotti points out that organisations cannot easily go around claiming other people’s property. The law of intellectual property generally considers it to belong most naturally with its originator. If universities wished to claim that they own intellectual property produced by their academic staff, that intellectual property must be created as a direct requirement of their employment. For universities, unique in the knowledge-producing world, this caused a problem. The policies implying that intellectual property might be developed by accident were right: research can be unpredictable. Protectable intellectual property may well come about as a result of serendipity rather than intent. Moreover, any policy attempting to make the production of intellectual property a requirement of academic employment encountered a tangle of problems. Research did not look the same for every person, project approach or discipline, so the policy descriptions were difficult to frame. The sample policies resorted to awkwardness to close as many loops as they could. The Royal Melbourne Institute of Technology policy highlights this possibility when, on the first page it claimed all intellectual property produced by staff in the course of their duties (Section 2a) and then went on to say:

Notwithstanding subsection (a) the University may require that member of staff or student formally assign to the University his or her interest to any intellectual property.

Unsure that ownership via employment would be sufficient, the university may require staff assign rights individually, to be safe. Universities’ claims were quite weak. Their real strength was not a legal claim, rather relying on the likelihood (especially for patented inventions) that staff would accept a generous profit share in exchange for the university to carry the risk. Profit sharing was a tacit admission that they were trying to claim property belonging to someone else. That staff and the National Tertiary Education Union accepted it shows that it was framed as a trade union determination to maintain financial rights. Both sides had it wrong.

The ownership of intellectual property created in the course of employment by the University, and hence the sole right to use such intellectual property, belongs to the university.

Most (six of eight) intellectual property policies claimed 100% of intellectual property. In order for staff to receive royalty income on publications those universities specified that the university waived their rights to publication. This is very different to what Monash and the University of New England policies did, which was simply not claim ownership of that kind of copyright: academics would own it themselves. It sounds like a subtle distinction, but it is not. When universities in the United States had tried this approach, the American Association of University Professors took serious exception. Their objections were based firstly on the relationship of the academic to the institution and secondly on the character of academic work.

Academic work was not work for hire, they said. It was not work done explicitly for and under the guidance of an employer:

The faculty member rather than the institution determines the subject matter, the intellectual approach and direction, and the conclusions. This is the very essence of academic freedom.

For inquiry to be free in this sense, academics must own the copyright, they claimed, not only enjoy its financial benefits. Theoretically, where universities own copyright instead, they could decide where it would be published, edit it at will or use it to create something else. Most importantly, the American Association pointed out, where the university owns copyright they could censor or suppress research.

[footnotes removed for the purposes of this posting. contact me if you want them]

Wednesday, 8 September 2010

This tantalising figure was dangled before the government and universities in 1993, when the Prime Minister’s Science and Engineering Council conducted a study on intellectual property. Almost a decade before, even without that annual global dollar value at their fingertips, university leaders already had a sense that knowledge might be worth money. In the mid-1980s – before the Dawkins reforms – the Higher Education Supplement reported that almost all universities were establishing structures to support research commercialisation. Research and technology parks were planned, leasing property to businesses on or near campus in the expectation that proximity would facilitate links between industry, commerce and university research. For-profit companies were created, wholly or partly owned by the universities. On-campus business liaison offices were established, designed to both support relationships and place a barrier between businesses and reputedly less-savvy researchers.

None of this would have been new to Philip Baxter. Chapter x described Unisearch, the company set up by the University of New South Wales in the late 1950s that would facilitate interactions between industrial problems and academic research. In this respect and others, Baxter looks like the entrepreneurial academic 30 years too early. Having come from industrial science, Baxter took as his model the “world’s big science-based industries, the chemical and petroleum industries, electronics, aviation, pharmaceuticals, communications and automobiles”. He considered “discoveries of great importance” to be practical discoveries, inventions and applied sciences. He believed tangible economic development to be the university’s responsibility to society and thought that some sacrifice of institutional autonomy was a fair exchange for substantial government funding. However, there are some important differences. Baxter considered “discovery” and “application” to be “not really two separate processes”. This would have been his experience in industry, where an industrial problem would feed a scientific one, which would in turn highlight new ideas for industrial development. So when Baxter sought alliances with industry through Unisearch, his focus was not profit, it was knowledge. His patenting strategy, as the earlier chapter showed, affirmed this.

Profit, not knowledge, was the motive of universities in the 1980s. Added to last chapter’s ethic of entrepreneurialism were two opposing ideas that paradoxically converged to point universities towards the same commercial outcome. The first idea suggested that universities would become relevant and their reputations would improve if only they would engage more with the “real” (moneymaking) world – this logic, as the last chapter showed, had also informed the development of an international export market. The second idea was that the moneymaking world was taking the universities for a ride: “Companies exploiting universities’ ideas for next to nothing”, read the headline. Universities failed to serve the business community on one hand but on the other, the business community was getting the valuable resources they needed from universities for free. That these contradicted each other did not matter. Their convergence was convenient since it gave universities both goal and moral justification in one. Knowledge was valuable to the community. They should therefore be able to buy it. Here we see the self-fulfilling logic that research commercialisation provided. Once knowledge was for profit it seemed obvious that those who profited from it should fund it. If free inquiry made knowledge available to a profit-focused public for free then inquiry should rather be for sale. No guilt would thus be attached to the pursuit of profit in the universities, for it would correct a financial injustice and provide a service for the community.

In this spirit, university leaders instigated ambitious commercialisation strategies. It quickly became obvious that the workload of leading and managing the process of research commercialisation was high. That, along with the growing complexity of relations with Canberra, led to the establishment across the universities of Deputy or Pro Vice-Chancellors for research. Offices crammed with specialised professionals were also needed for this to work. They negotiated deals, prepared contracts and agreements, advised on prototyping and development processes, and decided whether the university itself or a spin-off company would be best. Many universities established companies like Baxter’s Unisearch, tasked with responsibility for all the university’s commercial activities. The University of Queensland’s UniQuest was the most successful of these. Formed in 1984, UniQuest supported the university to quickly outrank all others in Australia for securing research funding through industry. But all this energy did not go unquestioned. A review of university research commercialisation in the late 1990s said, “the biggest blockage [to commercialisation] has been traditional academic attitudes”.

Gibbons and colleagues pointed out that the Mode 2 research that resulted from commercialised research practices carried with it some risks. Profit was not value-free. As McSherry has also argued, the university’s authority had long rested on its distinction from the pursuit of knowledge for profit. As members of the university were at that time becoming acutely aware, university knowledge had never been as objective as the university had often tried to claim: indeed, it was widely acknowledged that value-free knowledge was impossible. As post-structuralist theories made their partial and uneven mark on thinking in and about the university, university members increasingly claimed that the modern university’s authority over knowledge had been based on a positivist lie. This led David Biggins in his Australian Society article (influential at the free-market Withering Heights symposium ) to say:

Science today is no more value-free than when Galileo sold the telescope to the wealthy merchants of Venice, pointing out its military uses in order to gain a higher salary and more research funds.

The word “value” in the 1980s and 1990s was a fraught and confused term. Operating within this confusion, Biggins suggested that value-free universities have no value. The positivist lie, he said, was “summed up in slogans”:

‘Academic freedom’, ‘objective scholarship’, and – most bizarre of all – ‘knowledge for knowledge’s sake’.

For universities to have any value he said, they need to admit that knowledge is “value-laden” – value now accumulating meanings associated with profit, suggesting universities forge links with society by supporting its economic development. The logic of commercialisation was informed by a belief that the disconnect between university knowledge and the pursuit of profit was a symptom of the positivist lie. The university must now admit it has values, the new logic proclaimed. Profit (literal value), the likes of Biggins believed, was as good a value to accumulate as any.

Henry Etzkowitz, Loet Leydesdorff and colleagues, in their famous response to the Mode 2 thesis, later made a similar (though more sophisticated) argument. If universities could stop their ivory tower thinking, Etzkowitz et al claimed, they would make contributions of value. If that value was sufficient (and obviously connected to economic development), they said governments could financially justify increasing their funding. Commercial research, they claimed, was in fact the original mission of the university, disrupted by the institutionalisation of empirical research practices in the 19th century. Economic development, they said, was an important legitimising mechanism for university knowledge as contribution to culture. Biggins had put it more simply: “If universities can claim to produce anything of value for society it is knowledge.” Etzkowitz and Leydesdorff attached a productive metaphor of a triple helix that they hoped would replace the phrase Mode 2. This triple helix relationship between government, industry and universities metaphorically claimed vital productivity by its analogy to DNA: their relationship was supposed to be the living, growing building blocks of knowledge. Universities did not need to worry about conflicts derived from commercial priorities of profit versus a scholarly prioritisation of knowledge, in their model. The helix was unstable, dynamic and enabled relentless renegotiations of knowledge and intellectual property between parties all now motivated by profit, but to whom profit somehow “means different things”. Values, they seemed to believe, were stable and incorruptible despite their proximity to profit-motives. In the end they were also unimportant, constructed and relative. The only shared value was profit.

Bruno Latour says that when it came to social constructivism the most common mistake academics made was to think that construction itself was the interesting thing. It was not, he says. What was interesting about the fact that ideas were socially constructed was not that they had no value or were of equal value, but was rather that they enabled new questions about value to be raised: was that idea constructed well or poorly? Why was that mode of construction selected in these instances over another? For Biggins (who is of course just an example of some of the logic that fed research commercialisation), that universities were not value-free suggested that any values would do. Latour’s work would require us to ask: what would be the impact of shifting to profit-focused values, rather than “admitting” (to use Biggins’ own language) to other values? Perhaps Biggins himself provided the answer:

Universities are barely distinguishable from any other government or privately funded think-tank. They espouse the same values, do the same job, serve the same political masters.

With research commercialisation, there eventually would be no distinction between university knowledge and commercial research and development.

However, despite the claims, pressures, incentives and insults, many academics (indeed, commercialisation advocates estimated that as many as two-thirds of them) were not persuaded. A 1999 review of technology transfer and intellectual property across 37 universities reported myriad “attitude problems” were holding up change. Many persisted in an irritating preference for “conventional” means of communicating research – publication and conference presentation, they explained. At one university, they puzzled over staff who considered a commercial reputation damaging to academics’ standing – a standing that had long been based, as shown repeatedly in this thesis, on its distinction from commercial enterprise.

For Australian universities, intellectual property was the get rich quick scheme of the 1980s and 1990s. Like many schemes of its type, its financial successes did not tend to match its promise. But as all who work in universities will attest, there are far more ways of measuring success than financial return. The impact of intellectual property, for all its financial failures, was spectacular.

Between around 1986 and 1996 universities all chose to invest (sometimes heavily, depending on their legal fees) in intellectual property policies. Most of them already had a patent policy of some sort. However, something was changing. The change was represented, though not entirely captured, by the move to property-based terminology. The University of Wollongong’s 1979 patent policy, for example, had read:

Although university research is not directed specifically towards patentable inventions, there can arise in the course of research, inventions which in the interests of the public, the University and the inventor/s, should be patented.

Sometimes a patent was the best way of making research available. A decade later Wollongong University’s intellectual property policy expressed a different set of values:

Council has an obligation, under government policy, to seek reimbursement for costs which have been incurred in research and development leading to a discovery from which profit may be derived, and also to direct some of the profit (if any) to purposes for which the University has been established.

The focus had shifted from knowledge to profit. This is not in itself surprising, considering the other 1980s changes. But this particular change is important. It transformed the substance at the core of the university. It was intellectual property that made knowledge seem ownable in a new sense.

While important, the changes intellectual property policies made were subtle, often seeming uncontroversial – or perhaps just incomprehensible. Intellectual property is a slippery concept, even among lawyers.The language surrounding intellectual property, especially in universities where discussions about knowledge happens on many levels and for a thousand purposes, ensure meanings could and did slip from one person’s noble intention to another’s self-interest (and vice-versa). Legally, intellectual property refers to a set of rights temporarily granted to enable commercial exploitation of particular kinds of products of intellectual labour. Some of its slipperiness derives from its diversity. Vastly different legal histories are attached to (for instance) the development of copyright, protection of artistic works and music, patented invention, the keeping of trade secrets and protecting computer software.The kind of language this diversity spawned led to a crucial mistake that McKeogh and Stewart point out:

The principal danger…lies in forgetting that the term ‘property’ is merely a conclusory statement and in falling into the trap of assuming that any identifiable ‘thing’ must belong to someone. In the present context this translates into the erroneous belief that all fruits of intellectual activity have some intrinsic claim to be treated as property.

Knowledge is not intellectual property. However, policy changes of the 1980s and 1990s may represent an attempt to make more things tradeable – in this case knowledge – than the law of intellectual property really permitted.

Monotti and Ricketson, authors of Universities and Intellectual Property: Ownership and Exploitation, say that recently (they published in 2003) Australian universities had all discovered that intellectual property was important to them. It was like finding one has “been speaking prose for over forty years without realising it”, they said.They see it as not an actual change, more a kind of legal awakening. The change that did underpin it, they claim, was the development of what has become widely known as Mode 2 research.

Research had changed worldwide, so that by the 1990s new patterns were observable. In their 1994 book The New Production of Knowledge, Michael Gibbons and colleagues described a shift from Mode 1 patterns of research, where knowledge found its way from discovery to industrial application in a linear path, to Mode 2 research where industrial and academic problems were encountered and tackled in more integrated and collaborative ways. This initiated two key changes, according to Gibbons et al. Firstly, the previously distinct spheres of university and commercial knowledge were conflated, complicating the purpose of the production of knowledge. Secondly, the new relationships that Mode 2 forged led to complications in the ownership of intellectual property.Faced with uncertainties around who owned rights to what, Monotti and Ricketson claim, universities were compelled to develop policies regulating their intellectual property.It sounds plausible. However, taking a historical rather than legal perspective on this change raises questions that their explanation does not address.

I have selected a sample of eight intellectual property policies from Australian universities, largely based on which universities readily made them available.In each case the sample is the first policy of that institution to include the phrase “intellectual property”. The earliest of these was from the Australian National University in 1986, the latest from the University of Western Australia in 1996. These policies frame my date range, seeming to represent the period for new policy development. It is quite a specific set of dates, suggesting that, as well as a larger evolution towards Mode 2 research (which might be expected to result in sporadic changes over a longer time) new policies were perhaps triggered by more specific events. That being said, universities had all moved quite rapidly into research commercialisation in the 1980s, changes that might have facilitated a kind of Mode 2 (and thus intellectual property) growth spurt.

How did the changes in the focus of research as commercialisation commenced transform university knowledge? Contemporary concerns demonstrate the reach of the question: should biotechnologists patent the genes they identify?What responsibility do developers of pharmaceuticals have to the public on the one hand and to investors on the other?What of claims, like Yochai Benkler’s and Lawrence Lessig’s, that the world is richer when knowledge is shared?And finally, the finding by the Australian Federal Court in 2008 that university claims over intellectual property might violate academic freedom?These substantial tensions have their origins in this moment in university history. They give urgency to my overall question: in what conceptual ways was intellectual property deployed and how did it impact the ownership of university knowledge?

Thursday, 2 September 2010

This chapter has sought to interrogate some of the great mysteries of the 1980s for higher education. Things like: why did change happen so quickly? How could a Labor government succeed in achieving, in the late 1980s, what university opposition had made impossible for a Liberal government less than a decade earlier? What exactly were the causes and patterns of ideas that most people can only describe as ‘floating around’ in that decade? The answers lie in the confluence of discursive and policy elements and their intended and unintended consequences. If at any point they had been floating, eventually they coalesced to focus on two things: a transformation of the structure in which knowledge was produced and a change in the values attached to its production.

Entrepreneurialism and professionalism became values appreciated in academic staff over (what Murray had called) “knowledge intoxication” – indeed, to be knowledge intoxicated in the 1980s was more likely to be seen as self-indulgent, wastefully pursuing ‘hobby’ research. This shift was reinforced and extended by policies that shaped a competitive academic environment. It was the entrance of competition that gave government control over knowledge. When academics internalised financial scarcity as their own inadequacy, they handed authority over the value of knowledge to the government. Institutions, unions and government then together transformed the structure of the community of scholars to facilitate an environment that privileged the moment of exchange in the production of knowledge over the value of knowledge itself.

As Minister for Education from 1987, John Dawkins functioned as higher education’s bogeyman. It was widely stated that each change might threaten the integrity of university knowledge, but lofty ideals seemed impossible. The Dawkins excuse could always be invoked and in so doing, historical mythmaking ensued. The anti-Dawkins discourse that roamed university corridors perpetuated a myth that universities did not jump, but were pushed into an entrepreneurial, managerial and increasingly profit-focused world. It is more truthful to say that (partly from fear of Dawkins) they pushed themselves – and went far beyond what Dawkins could ever have achieved.

That government took control of knowledge in the late 1980s was in part a consequence of the loss of legitimacy universities experienced in the 1970s. That the university had no obvious capacity to claim its traditional role in legitimising knowledge left a power vacuum that government was only too happy to fill. This is not to suggest that the delegitimisation that resulted from 1960s and 1970s protest movements was wrong. Rather, the movements had not (and could not have) predicted that government would use it to reaffirm the economic functions that had been increasingly connected to university knowledge since the Second World War. More, that government could thus claim a right to control it.

Government had no claim to authority over knowledge either, ordinarily. But it was in the connection between university knowledge and economic development that the Commonwealth government located its initial claim to legitimacy. The role of knowledge in the economy – a role that had been increasing as the nature of the economy changed – gave government in the 1980s some rhetorical justification for directing knowledge. However, it was insufficient. The control of knowledge depended not only on the right to deploy it, but also on the right to select it: to decide what (quality) knowledge was. With no expertise to use as its foundation, government turned to the logic of the market. Market forces would determine and demonstrate quality knowledge. Significantly, government policy did not use undergraduate student fees to this purpose (though HECS certainly made it easier to do so later). Rather (and this is the topic of the next chapter), both university and government policies would draw on a different commodifying concept to evaluate quality knowledge: intellectual property.

Wednesday, 1 September 2010

John Scott, who was a lovely man, Chair of the AVCC at the time, used to proudly say he was a member of FAUSA. I remember one of my earlier meetings of AVCC, they had a show of hands for who is a member of the union. Everyone put their hands up.

The membership-based collectivity of the Federation of Australian University Staff Associations functioned as a signifier for the community of scholars. Membership enabled the Vice-Chancellors to identify themselves as primus inter pares – first among equals, but inseparable from their staff. Robert HT Smith thought they were mad: “now I know I am in cloud cuckoo-land,” was his response to that meeting, “I mean, you’re either management or you’re union”. He represented the new way.

Tension had long been growing in the staff associations, focused on the alignment or opposition of the staff with university leadership. Some members of the Federal Association had been keen since 1973 (when a salaries tribunal had been established) to convert that organisation into a formal union. They were not a majority – it had been voted down in 1981. Apprehension incubated in the individual staff associations as well. Sybil Jack describes the reluctance to unionise felt by members of the Sydney Association of University Teachers as a result of “gentlemanly” sentiments towards university government, invoking a political and class distinction between the approaches. This is probably fair. But it was not the only thing going on.

Reluctance to unionise was related to the subtle and vulnerable structure that regulated the community of scholars: the gift economy. The ethic of the gift configured the complex system of obligation within the universities. Teaching, supervision and peer review are tasks that were structured by the gift ethic. In a pre-managerialised university, the same gift economy governed the monitoring of office keys, laboratory equipment and university finances. The economy of gift giving and the obligations each gift engendered created the ties that gave academics enduring membership in a community of university-based intellectuals. The system of obligation stretched across international networks of scholars, binding disciplines and individuals in productive ways. Equipment, specimens, artefacts, gossip, employment opportunities and graduate students, Tamson Pietsch shows, traversed networks of individual scholars, irrespective of national and institutional alliances. Archived papers of former academics are swollen with letters – requests for advice, debates of ideas, comments on publications and drafts, invitations and references – all traces of gifts and the debts each gift incurs. The gift was the intangible substance that defined, beyond individual institutions, the idea of the university.

This is not to advocate nostalgia for academia’s gift-giving: after all, a gift economy is an economy nonetheless. In fact, it has distinct disadvantages in some instances. The gift economy, for instance, has often led to the exploitation of (especially, but not exclusively) laboratory-based graduate students: power structures where authorial credit is the obligation of the student to their supervisor as a kind of gift-exchange, regardless of actual intellectual input. Gifts in a gift economy are not given freely. Nevertheless, the system of gift-based obligation worked well (by and large) for the academic community for three key reasons. Firstly, exchanges did not have to be equal in the instant they were made: a gift was deposited into the network, but would rarely be returned via the same source. It relied on the richness of the community (richness in this case meaning knowledge, equipment, scholarship) and obliged each member to contribute to it. This created its second benefit: it placed the idea of the university at the centre of its economy, so that returns were gains in knowledge. And thirdly (and this is the point most relevant to what Vice-Chancellors and unions were doing at this moment in Australian university history) it bound the leadership of the university to its scholars in their shared responsibility for the protection and promotion of knowledge as the substance at the university’s core.

So of the changes forged in the 1980s, the repositioning of academic staff is possibly the most important. A gift economy is regulated by the risk attached to being excluded from the community. But something was changing. The probability that someone would fail to honour her or his obligation was increasing. Trust crumbled. Vice-chancellors, wishing to appear to be efficient and productive in response to public pressure, squeezed harder. Staff associations braced themselves. They had been preparing for this: some of them, anyway. The Orr case, the Ward case and even Knopfelmacher had shown that they “had teeth”, as Ken Buckley put it. Formal unionisation seemed inevitable. A union could still be consultative, one proponent of unionisation had said in 1979:

A move into the industrial arena does not imply any radical change in universities. Despite what the scare-mongers say, staff and university representatives can still sit down together and work things out. The existence of such an option may of itself encourage greater consultation in the future – indeed we believe the art of industrial relations is to avoid rather than encourage confrontation-arbitration.

They had misunderstood. By labelling the collegial drive “gentlemanly”, pro-union members mistook the complexity of the gift economy for civility and good manners.

Adding to the turmoil, The Australian Council of Trade Unions (ACTU) was restructuring. A decline in union membership across all Australian industries prompted them to reorganise, starting with amalgamations of small unions into larger bodies that would represent whole sectors. Under this crusade then, they intended to establish a large union for the whole of education, but higher education asserted its own distinctive issues. The various staff associations (also reflecting the end of the binary system of colleges and universities) merged to form the National Tertiary Education Union. As a formal union (and in such tumultuous times) they were then positioned in a structurally adversarial relationship to university leadership. Ironically, this was the reverse of the position that had originally given the staff association strength. They had resisted the master-servant relationship established during the Orr case because it destabilised academic freedom (as seen in an earlier chapter). But formal unionisation decisively located academics as employees, invoking the employer/employee divide. The shared vocation of protecting, upholding and promoting knowledge was reduced to its paid obligation. Without the community of scholars the university would dissolve into nothing. However, for two reasons, the collapse of the community of scholars would never be absolute. One is that the idea of the university was fundamentally related to academic motivation: many aspects of the gift economy would be perpetuated through that alone, though always in tension with the new structures. The other reason is located in the legal character of the universities. Their Acts that instated the existence of the public institutions said that the university was its members, a membership dominated by academic staff.

Robert HT Smith told me that by the end of the 1980s no vice-chancellor identified as union. From all to none in less than a decade: it represents a major shift. But it was not formal unionisation that changed the vice-chancellors. Public and government scrutiny of the internal efficiency of universities prompted the vice-chancellors to change their approach, which Marginson and Considine describe so clearly. As well as promoting greater entrepreneurialism, the universities ran themselves in more managerial and less collegial ways: collegiality as an old-fashioned idea, was assumed to be inefficient. Managerialism necessarily contributed to the employer/employee divide. The gift ethic that bound the vice-chancellor to their academic staff crumbled. Academic work was now firmly labour in exchange for money.

This exacerbated the problem of scarcity, which as I have already suggested, had been pushed out from the sources of funding to institutions and individuals as a quantitative indication of their worth. Universities, departments and individuals were compelled to demonstrate their value through competition. It was an approach that contradicted the gift ethic: it was difficult to maintain gift-based obligations with those with whom one must also compete. It thus disrupted a larger idea of collegiality as well as the one that used to govern the university: consideration of issues at (say) department level could no longer be based on its impact on the university as a broad idea, on the integrity of the system that maintained the nation’s “intellectual health” (as Ashby had put it). Rather, self-interest would be expected to frame decisions that would enable it to compete, leaving the integrity of knowledge a secondary consideration. They made a fundamental change to the university environment. In this structure knowledge would no longer flow like gifts, it would flow like money.

[As usual, references have been removed for this posting. Please contact me if you would like them.]

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About Me

I have kept this blog since 2008. In that time I completed a PhD in the history department at the University of Sydney called “The Ownership of Knowledge in Higher Education in Australia, 1939-1996” and have begun new work. This blog recounts my pathway through my research and thinking to include work on social inclusion, historiography, labour history and the history of knowledge. Hopefully it goes without saying that anything here is a draft. It is a blog, not a book. Lots of times I could be wrong - if I am, please tell me.